New ITC Report Highlights IP Infringement Trends

The U.S. International Trade Commissions (ITC) report on cases involving allegations of unfair methods of competition and unfair acts involving imported articles under Section 337 of the Tariff Act of 1930 as amended, 19 U.S.C. § 1337. Because most Section 337 investigations involve allegations of infringement of intellectual property rights, the report offers some interesting insights.

The ITC first notes that Section 337 investigations have increased significantly over the past five years and are expected to remain at elevated levels. In response, the agency has opened a new courtroom that is specially equipped to handle the complex cases that account for much of the IP-based Section 337 docket.

The report also highlights that a substantial number of Section 337 investigations involve IP-based matters regarding high tech products. For instance, computer and telecommunications products accounted for about 25 percent of new investigations instituted in calendar year 2011 and about 30 percent of new investigations in 2012. Other consumer electronic products accounted for about 15 percent of new investigations in 2011 and about 20 percent of new investigations in 2012

The ITC report also addresses investigations initiated by non-practicing entities (NPEs). It cites that some commentators have suggested that NPE filings account for the agency’s increased caseload because of the U.S. Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, which made injunctions more difficult to obtain in district courts. However, the ITC data does not seem to support this suggestion.

According to the ITC, since the eBay decision on May 15, 2006, it instituted 301 investigations through the first quarter of 2013. Of these, Category 1 NPEs, defined as entities that do not manufacture products that practice the asserted patents and whose business model primarily focuses on purchasing and asserting patents, accounted for 33 (or 11 percent). Category 2 NPEs, defined as all other entities that do not manufacture products that practice the asserted patents, accounted for 27 (or 9 percent).

In that same time period, only four NPEs were successful in obtaining exclusion orders: two Category 1 NPEs and two Category 2 NPEs. In each of these four investigations, the involved NPE or its subsidiary developed the technology at issue in the investigation.

How Can I Help?

If you, or someone you know, need any help with Intellectual Property issues, from filing a patent, trademark or copyright, or just need advice regarding how best to protect your inventions, ideas or your brand, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

US stamp featuring photo of monument isn’t Fair Use.

At first that may sound surprising, but Frank Gaylord, a sculptor, was awarded over half a million dollars because a stamp was made including a war memorial he’d designed.

https://i0.wp.com/www.dpreview.com/files/news/3851422397/Stamp.jpg

Initially the Postal Service defended itself on the basis of co-ownership of copyright (having contributed to the design) which is an exemption under the Architectural Works Copyright Protection Act, and fair use.

In a 2008 court case, the first two defenses were dismissed, but the court accepted a fair use claim, but this was rejected on an appeal in 2010.

Fair use is a defense that tries to protect copyright holders, but allows use of the work that doesn’t unduly hold back science and the arts.

The factors used to determine fair use under copyright law are:
The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
the nature of the copyrighted work;
the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
the effect of the use upon the potential market for or value of the copyrighted work.

The court in the 2010 appeal looked at each factor and found that the first two elements weighed most heavily in the verdict.

The argument that the photograph used on the stamp is a transformative work (it changes the purpose or character of the original), wasn’t helped by the Postal Service entitling the stamp ‘Korean War Veterans Memorial’ – suggesting it’s a depiction of Gaylord’s work, rather than a original work based on it.

While the earlier court had ordered the US Postal Service to pay Gaylord just $5,000 based on the largest amount the USPS had paid licensing a photograph.

The court on appeal instead found that the USPS owed $684,845 based on Gaylord’s normal rates and 10% of the fee the creator of the derivative work (the photograph) made.
The 10% rate was only applied to the stamps that the Postal Service believes have been bought by collectors (considered pure profit). The remainder of the award is a 10% royalty on related merchandise the Postal Service sold and an interest payment to make up for the delay in payment while the court cases have rumbled on.

How Can I Help?

If you, or someone you know, has a copyright issue or need any help with Intellectual Property issue, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Misconceptions About Copyrights Can Land You In Hot Water.

With millions of images and information easily  accessible on the Internet to copy and distribute, you can quickly run afoul of someone’s copyright.  Individuals, businesses and companies large and small generally misunderstand copyrights and how not to get into trouble when posting someonelse’s work .

Buzzfeed’s recent unauthorized use of a copyrighted image is one example of what not to do.  The popular website recently posted an article about unusual uses for household items.  One of the suggestions was a clever use of juice box tabs as handles so that children would not squeeze juice all over themselves.  The problem was that the image they used in the article belonged to someone else, and Buzzfeed didn’t ask for permission before using the image.  The image was taken from Flickr account, which led to a sharply worded post about the website, which went viral,  and eventually Buzzfeed donating money to a charitable organization for the image.

Buzzfeed has had previous issues with copyright violations, and in one instance they tried to dismiss their use of an image because they believed it to be public domain.  Images or other works in the public domain are not protected by copyright and they can be used freely by anybody in any way they choose.  However, image in question was not in the public domain.

There are clear distinctions as to what constitutes the public domain and copyrighted material.  Many people wrongly believe that because something it is on the Internet, it is in the public domain or free to use.  That is clearly not the case, and can lead to some severe penalties.

 

How Can I Help?

Copyrights are valuable property so It is important that you are aware of the pitfalls and protections.  If you need help to protect your work from infringement, or defend yourself against a copyright lawsuit, or just need help understanding copyrights, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Google Sees Spike in Copyright Removal Requests

Google recently announced new figures regarding the number of takedown notices it receives under the Digital Millennium Copyright Act. The search giant also announced that interested parties can now download all the data shown for copyright removals in a new “Transparency Report.”

According to Google, when it launched the copyright removals feature, it received more than 250,000 requests per week.  That number  spiked in just six months to more than 2.5 million requests per week.

Google also reports that although it is receiving more requests, it is still able to process them, on average, within approximately six hours. Overall, Google has removed 97.5 percent of all Web links included in copyright removal requests.

Google has staunchly opposed legislative efforts to combat online piracy, such as the Stop Online Piracy Act (SOPA). The latest reports seems to be an effort to show that it is up to the task of policing its own search results.

“We’ll continue to fine tune our removals process to fight online piracy while providing information that gives everyone a better picture of how it works,” Fred Von Lohmann, Legal Director at Google, stated in a related blog post. “By making our copyright data available in detail, we hope policymakers will be able to see whether or not laws are serving their intended purpose and being enforced in the public interest.”

How Can I Help?

For more information about how to protect your copyrighted material, contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine.  As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Copyright Infringement Basics and the Internet

Almost 50 percent of Internet users are unsure whether the content they are accessing online is legal, according to a new study from the United Kingdom. Yet, one in six people online believed they have committed copyright infringement by downloading, streaming, or otherwise accessing content illegally over a three-month period this year.

The study was conducted by researchers with Ofcom, an independent regulator and competition authority
for the UK communications industries. The large-scale consumer survey examined the extent of online copyright infringement among Internet users aged 12 and above.

Below are several additional findings from the survey:

  • Reported levels of infringement varied considerably by content type: 8% of Internet users consumed some music illegally in the three months, but just 2% did so for games and software;
  • The most common reasons cited for accessing content illegally were because it is free (54%), convenient (48%) and quick (44%). Around a quarter (26%) of infringers said it allows them to try before they buy;
  • Infringers said they would be encouraged to stop doing so if cheaper legal services were available (39%), everything they wanted was available from a legal source (32%) or it was more clear what content was legal (26%). One in six said they would stop if they received one notifying letter from their internet service provider (ISP); and
  • Those who consumed a mixture of legal and illegal online content in the form of music, films and TV programs reported spending more on legal content in these categories over the three-month period than those who consumed entirely legal or illegal content.

One of the goals of the study was to assess the need for awareness campaigns to help educate consumers about the impact of copyright infringement. Like the U.S. Six Strikes Program I discussed in an earlier post, the U.K. will soon implement requirements mandating that large ISPs inform customers that their Internet connection has been used to commit copyright infringement, and to explain where they can find legal content online.

How Can I Help?

If you need help to protect an original work with a copyright registration, or you have been accused of copyright infringement, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman

Small copyright disputes and how to resolve them.

The Copyright Act protects a wide variety of works of authorship, from individual articles or photographs that may not have a high commercial value to motion pictures worth hundreds of millions of dollars in the marketplace.

Copyright owners can file lawsuits under the copyright law for unauthorized use of the owner’s work.

However, not all copyright owners have the same resources for bringing a lawsuit, which usually requires substantial time, money, and effort.

Sometimes a copyright owner may want to stop a small infringement that has caused a relatively small amount of economic damage.  The owner might not file a lawsuit because of  a modest recovery versus the potentially large expense of litigation.

In some cases under the copyright act, owners can receive statutory damages and attorney’s fees, but these amount may not be recovered until after the copyright owner has engaged in a long court battle at a significant cost.

So Congress has asked the Copyright Office to study the current system for a means to resolve small copyright claim disputes, as well as possible alternative systems.

To conduct this study, the Office has undertaken a variety of activities to learn more about small copyright claims issues. The Office has published three Notices of Inquiry requesting public comments on the challenges faced under the current system as well as possible alternatives to the current legal system.

If you would like to add your voice to the study, you can enter your comments here.

How Can I Help?

Copyrights can be a source of great income, or great liability.  If you have a work that needs protection, or know someone that can use my help, please contact me for a free 30 minute consultation at nvantreeck@usip.com or call TOLL FREE at 1-855-UR IDEAS (1-855-874-3327) and ask for Norman.

– Ex astris, scientia –

I am and avid amateur astronomer and intellectual property attorney in Pasadena, California. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +

Norman